| Matter of Spiewak v Ackerman |
| 2011 NY Slip Op 07542 [88 AD3d 1191] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Elena Spiewak, Respondent, v Anthony AckermanSr., Appellant. |
—[*1] Laura L. Silva, Schenectady, for respondent. Elena Jaffe Tastensen, Saratoga Springs, attorney for the children.
Lahtinen, J. Appeal from an order of the Family Court of Schenectady County (Assini, J.),entered September 21, 2010, which, among other things, partially granted petitioner's application,in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody andvisitation.
The parties had joint legal custody of their children (born in 1995 and 1997) pursuant to theterms of a consent order entered in January 2005, which was later incorporated but not mergedinto their divorce judgment. The order further provided petitioner (hereinafter the mother) withprimary physical custody while respondent (hereinafter the father) had visitation on alternateweekends, as well as at such other times as the parties agreed. In November 2009, the mothercommenced this proceeding seeking sole legal custody of the children and a reduction in thefather's visitation. Following a hearing, Family Court granted the mother sole legal custody butrefused to reduce the father's visitation. The father appeals.
We affirm. " 'Modification of an existing custody arrangement is appropriate where thepetitioner establishes by a preponderance of the evidence that there has been a change incircumstances and that modification is necessary to ensure the best interests of the children' " (Matter of Seacord v Seacord, 81 AD3d1101, 1103 [2011], quoting Matterof Cobane v Cobane, 57 AD3d 1320, 1321-1322 [2008], lv denied 12 NY3d 706[2009]). There was ample evidence, credited by Family Court, that since early 2009, the parties'relationship significantly deteriorated [*2]such that they werehostile and unable to effectively communicate. The father's verbal abuse resulted in the motherusing written communication with the father, and the father had changed his telephone withoutproviding the new number to the mother. The parties' inability to communicate and cooperate asto parenting decisions constituted a change in circumstances regarding their joint legal custody(see Matter of Williams v Williams,66 AD3d 1149, 1150-1151 [2009]; Matter of Goldsmith v Goldsmith, 50 AD3d 1190, 1191 [2008]; Matter of Grant v Grant, 47 AD3d1027, 1028 [2008]).
"In determining the children's best interests, a court must view all of the circumstances whileconsidering certain factors, including maintaining stability for the children, the children's wishes,the home environment with each parent, each parent's past performance and relative fitness, eachparent's ability to guide and provide for the children's overall well-being and the willingness ofeach to foster a positive relationship between the children and the other parent" (Matter of Kilmartin v Kilmartin, 44AD3d 1099, 1102 [2007] [citations omitted]). Proof revealed that the children hadbehavioral and medical issues and the father failed to acknowledge the extent of the children'sproblems. He had not been actively involved in their medical care and, at one point, unilaterallystopped giving one child his prescribed medication for two months until ordered by Family Courtto resume giving the medicine. He exhibited significant lapses of parental judgment andsupervision when, while in his care, one child took the wrong medicine and the children watchedpornographic movies. He engaged in various hostilities against and accusations directed at themother, including twice making unfounded reports to child protective services. The mother hadremarried and her new spouse was supportive of the children. Their home provided a structuredenvironment, which experts indicated the children needed. She exhibited efforts at positiveadvocacy for the children and she had undertaken virtually all decisions regarding the children,whereas the father failed to take a meaningful role. Family Court's determination to place legalcustody with the mother is supported by a sound and substantial basis in the record (see Matter of Hayward v Thurmond, 85AD3d 1260, 1262 [2011]; Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1131[2010], lv dismissed and denied 14 NY3d 912 [2010]).
The father next argues that Family Court made a reversible error in considering apsychological evaluation that he had marked as an exhibit at the hearing, but had not offered intoevidence. While the report should not have been considered, the error was harmless in light ofthe quantum of evidence and the fact that the report was not the basis for determining custody(see generally Matter of Nicholas R.[Jason S.], 82 AD3d 1526, 1528 n [2011], lv denied 17 NY3d 706 [2011]; Matter of Pettengill v Kirley, 25 AD3d935, 936 [2006]; Matter of Mathieuv Grosser, 5 AD3d 1069, 1070 [2004]).
We are unpersuaded by the father's contention that his attorney did not provide meaningfulrepresentation, thus depriving him of the effective assistance of counsel (see Matter of Hurlburt v Behr, 70AD3d 1266, 1267 [2010], lv dismissed 15 NY3d 943 [2010]). The father's attorneyeffectively cross-examined witnesses and she produced four witnesses on his behalf includingtwo experts. The father did not show that the failure to call him as a witness or to ask specificquestions of the mother did not reflect legitimate trial strategy (see Matter of Shangraw v Shangraw,61 AD3d 1302, 1305 [2009]), and a review of the record reveals that he received meaningfulrepresentation.
Spain, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.